RE: Exceptions to Double Jeapordy

RE: Exceptions to Double Jeapordy

Reprosecution After Reversal on Defendant's Appeal:--Generally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, the assumption being made in the first case on the subject that, by appealing, a defendant has ''waived'' his objection to further prosecution by challenging the original conviction.An exception to full application of the retrial rule exists, however, when defendant on trial for an offense is convicted of a lesser offense and succeeds in having that conviction set aside. Thus, in Green v. United States,120 defendant had been placed on trial for first degree murder but convicted of second degree murder; the Court held that, following reversal of that conviction, he could not be tried again for first degree murder, although he certainly could be for second degree murder, on the theory that the first verdict was an implicit acquittal of the first degree murder charge. Even though the Court thought the jury's action in the first trial was clearly erroneous, the double jeopardy clause required that the jury's implicit acquittal be respected.-----------------------------------------------------------------Still another exception arises out of appellate reversals grounded on EVIDENTIARY INSUFFICIENCY. Thus, in Burks v. United States,123 the appellate court set aside the defendant's conviction on the basis that the prosecution had failed to rebut defendant's proof of insanity. In directing that the defendant could not be retried, the Court observed that if the trial court ''had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense. . . . t should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.''124 The policy underlying the clause of not allowing the prosecution to make repeated efforts to convict forecloses giving the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. ON THE OTHER HAND, if a reviewing court reverses a jury conviction because of its disagreement on the weight rather than the sufficiency of the evidence, RETRIAL IS PERMITTED; the appellate court's decision does not mean that acquittal was the only proper course, hence the deference required for acquittals is not merited.125 Also, the Burks rule does not bar reprosecution following a reversal based on erroneous admission of evidence, even if the remaining properly admitted evidence would be insufficient to convict.126 ------------------------------------------------------------------------------There are exceptions to the double jeopardy rule, such as when a mistrial occurs. Another exception is that a second prosecution for the same crime is constitutional when elements of the crime charged in the second prosecution were impossible to prove at the first trial.Double Jeopardy - Multiple Prosecutions - Test - ExceptionsProhibits a person from being placed in jeopardy twice for the same offense. The same transaction test for determining whether multiple prosecutions violate this protection does not prohibit the successive prosecution of crimes arising from the same incident WHEN a crime is not completed or discovered, despite diligence on the part of the police, until after the commencement of the prosecution for other crimes.---------------------------------------------------------- Under the federal constitution, whether successive convictions arising from the same incident violate the protection against multiple punishments depends upon legislative intent. In determining legislative intent, a court must identify the type of harm the Legislature intended to prevent and the amount of punishment authorized by it. If conclusive evidence of legislative intent cannot be discerned, the rule of lenity requires the conclusion that separate punishments were not intended. ------------------------------------------------------------Multiple Prosecutions - If a defendant is convicted of multiple crimes in violation of double jeopardy protections, the remedy is to affirm the conviction of the higher charge and vacate the lower conviction *** "DUAL SOVEREIGN'' A person can be tried in BOTH State and Federal court, concerning relations to the same crime - and it is NOT considered Double Jeapordy. They are two different entities.QUESTION PRESENTED Whether petitioner's prosecution in federal court after his acquittal on identical charges in state court violated his rights under the Double Jeopardy Clause. It is well settled that successive state and federal prosecutions for the same misconduct do not violate the Fifth Amendment's proscription of double jeopardy. Under the 5th Amendment, a person cannot twice be put in jeopardy for the same offense, but with lesser and greater offenses included, it is not in the least bit easy or logical determining what are the same offenses.While under the federal constitution, successive prosecutions are allowed, many states through the state constitution, state laws, and state practice limit or forbid such prosecutions.--------------------------------------------------------------------------------A person can be tried again in special circumstances such as the discovery of compelling new evidence after an acquittal. (I have still not found...where I found this at.)

Double Jeopardy Prohibition against a second prosecution for the same offense. The defendant is also protected from receiving multiple punishments for the same crime. Double jeopardy may not apply when there is a mistrial, or when the defendant is able to get a conviction thrown out through an appeal. However, a mistrial must not have been caused by the prosecution, and the conviction must not have been thrown out due to insufficient evidence of guilt. Prosecution by both the state and federal governments is not double jeopardy, nor is prosecution by both federal and tribal governments, or by state and tribal governments------------------------------------------------------------------------------------Double Jeopardy Does Not Bar Prosecution Of Acts Used As Evidence In Earlier Prosecution

(Such as a case in MO., being used in a case in OK.) such as to show conspiracy, etc.

and evidence of a previously prosecuted substantive offense may be used to prove an overt act of a subsequently prosecuted conspiracy offense without violating the double jeopardy cla